Michigan Law Review最新文献_第9页

The Geopolitics of American Policing 美国警务的地缘政治

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2021-01-01 DOI: 10.36644/MLR.119.6.GEOPOLITICS

A. Lanham

引用次数: 0

The "Innocence" of Bias 偏见的“清白”

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2021-01-01 DOI: 10.36644/MLR.119.6.INNOCENCE

Osamudia R. James

引用次数: 0

The Limits of Deliberation About the Public's Values 公共价值审议的限度

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2021-01-01 DOI: 10.36644/MLR.119.6.LIMITS

M. Seidenfeld

引用次数: 0

Young and Dangerous: The Role of Youth in Risk Assessment Instruments 青年与危险:青年在风险评估工具中的作用

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2021-01-01 DOI: 10.36644/mlr.120.3.young

Ingrid Yin

引用次数: 0

Remediating Racism for Rent: A Landlord’s Obligation Under the FHA 纠正种族主义租金:房东在联邦住房管理局下的义务

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2021-01-01 DOI: 10.36644/mlr.119.8.remediating

Mollie Krent

引用次数: 0

Fee Simple Failures: Rural Landscapes and Race 简单的失败:乡村景观和种族

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2021-01-01 DOI: 10.36644/mlr.119.8.fee

Jessica Shoemaker

{"title":"Fee Simple Failures: Rural Landscapes and Race","authors":"Jessica Shoemaker","doi":"10.36644/mlr.119.8.fee","DOIUrl":"https://doi.org/10.36644/mlr.119.8.fee","url":null,"abstract":"Property law’s roots are rural. America pursued an early agrarian vision that understood real property rights as instrumental to achieving a country of free, engaged citizens who cared for their communities and stewarded their physical place in it. But we have drifted far from this ideal. Today, American agriculture is industrialized, and rural communities are in decline. The fee simple ownership form has failed every agrarian objective but one: the maintenance of white landownership. For it was also embedded in the original American experiment that land ownership would be racialized for the benefit of its white citizens, through acts of colonialism, slavery, and explicit race-based exclusion in property law. Today, rather than undoing this racialized legacy, modern property rules only further concentrate and homogenize rural landownership. Agricultural landownership remains almost entirely— 98 percent—white. This is a critical racial justice issue that converges directly with our impending environmental crisis and the decline of rural communities more generally.This Article builds on work of rural sociologists and farm advocates who demonstrate, again and again, that despite a pervasive narrative of rural places dying for want of population and agricultural systems too far gone for reform, the reality is a crowd of emerging farmers—and farmers of color in particular— clamoring for access. Existing policy efforts to support beginning farmers have focused primarily on supporting a few private land transactions within existing systems. This Article brings property theory to the table for the first time, arguing that property law itself is not only responsible for the original racialized distributions of agricultural land but also actively perpetuates both ongoing racialized disparities and the currently industrialized and depopulated rural landscape. This Article deconstructs our most fundamental land-tenure choice—the fee simple itself—and calls on our collective legal imagination to develop more adaptive, inclusive, and dynamic land-tenure designs rooted in these otherwise overlooked rural places.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"49 1","pages":"1695"},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507613","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution 《不诚实的书记官案:莫里斯总督与联邦宪法的制定》

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2021-01-01 DOI: 10.36644/mlr.120.1.case

William Treanor

{"title":"The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution","authors":"William Treanor","doi":"10.36644/mlr.120.1.case","DOIUrl":"https://doi.org/10.36644/mlr.120.1.case","url":null,"abstract":"At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris was an honest scrivener. No prior article has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law.This Article undertakes that comparison. It shows that Morris made fifteen significant changes to the Constitution and that many of the Constitution’s central elements were wholly or in critical part Morris’s work. Morris’s changes strengthened the national executive and judiciary, provided the textual basis for judicial review, increased presidential accountability through an expansive conception of impeachment, protected private property, mandated that the census report reflect “actual enumeration,” removed the constitutional text suggesting that slavery was just, and fought slavery’s spread.This Article also shows that Morris created the basis for the Federalist reading of the Constitution. Federalists—notably including fellow Committee member Alexander Hamilton—repeatedly drew on language crafted by Morris as they fought for their vision of the Constitution. Because the changes Morris made to the Convention’s agreed language were subtle, both Republicans and Federalists were able to appeal to text in the great constitutional battles of the early republic. Modern originalists claim that the Republican reading reflects the original understanding of the Constitution, but this Article argues that the largely dismissed Federalist reading explains words, phrases, and punctuation that the Republican reading ignores or renders unintelligible. By contrast, the Federalist reading of the Preamble (which they saw as a grant of substantive power), the Article I and Article II Vesting Clauses (which were contrasted to argue for expansive executive power), the Article III Vesting Clause (which they read to mandate the creation of lower federal courts), the Contracts Clause (which they read to cover public as well as private contracts), the Impeachment Clause (which they read to cover both nonofficial and official acts), and the “law of the land” provision (which they construed as a basis for judicial review) gives effect to Morris’s—and the Constitution’s—words.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"47 1","pages":"1"},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning 性的意义:动态词汇、新颖应用与原始公共意义

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2021-01-01 DOI: 10.36644/mlr.119.7.meaning

William Eskridge Jr.,Brian Slocum,Stefan Gries

{"title":"The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning","authors":"William Eskridge Jr.,Brian Slocum,Stefan Gries","doi":"10.36644/mlr.119.7.meaning","DOIUrl":"https://doi.org/10.36644/mlr.119.7.meaning","url":null,"abstract":"The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that longstanding statutes are inherently dynamic because they inevitably evolve beyond the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to evolve naturally over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism).Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). As society changes, so do social norms; what we call normative dynamism is the influence of evolving values on the interpretive enterprise, however conceptualized. Linguistic and normative dynamism create difficulties for originalism, but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). We explore the relationship among societal, linguistic, and normative dynamism and their implications for original public meaning.Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all the opinions in Bostock assumed, and that gender and sexual orientation were essentially nonwords in 1964. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, today’s gays and lesbians and transgender people are social groups that did not exist (or that existed in a very different form) in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance. Finally, the Court missed an opportunity to acknowledge the importance law can as","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"32 4 1","pages":"1503"},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507617","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Social Norms in Fourth Amendment Law 第四次法律修正案中的社会规范

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2021-01-01 DOI: 10.36644/mlr.120.2.social

Matthew Tokson,Ari Waldman

{"title":"Social Norms in Fourth Amendment Law","authors":"Matthew Tokson,Ari Waldman","doi":"10.36644/mlr.120.2.social","DOIUrl":"https://doi.org/10.36644/mlr.120.2.social","url":null,"abstract":"Courts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. This Article draws on contemporary sociological literatures on norms and technology to reveal how courts’ reliance on norms leads to several identifiable errors in Fourth Amendment jurisprudence.Courts assessing social norms generally adopt what we call the closure principle, or the idea that social norms can be permanently settled. Meanwhile, courts confronting new technologies often adopt the nonintervention principle, or the idea that courts should refrain from addressing the Fourth Amendment implications of new surveillance practices until the relevant social norms become clear. Both approaches are flawed, and they have substantial negative effects for equality and privacy. By adopting norms perceived as closed, courts may embed antiquated norms in Fourth Amendment law—norms that often involve discrimination on the basis of race, gender, or class. By declining to intervene when norms are undeveloped, courts cede power over norm creation to companies that design new technologies based on data-extractive business models. Further, judicial norm reliance and nonintervention facilitate surveillance creep, the extension of familiar data-gathering infrastructures to new types of surveillance.This Article provides, for the first time, a full, critical account of the role of social norms in Fourth Amendment law. It details and challenges courts’ reliance on social norms in virtually every aspect of Fourth Amendment jurisprudence. And it explores potential new directions for Fourth Amendment law, including novel doctrinal paradigms, different conceptions of stare decisis in the Fourth Amendment context, and alternative institutional regimes for regulating government surveillance.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":"47 5","pages":"265"},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Can Prosecutors End Mass Incarceration 检察官能结束大规模监禁吗

IF 2.7 2区社会学

Michigan Law Review Pub Date : 2021-01-01 DOI: 10.36644/MLR.119.6.CAN

R. Barkow

引用次数: 1